A lawsuit is filed…and that is often when the real work begins for all the parties involved.

In some cases, neither the plaintiff nor the defendant has all the proof; documents, data and other types of evidence; they need to fully prove their respective cases. So, each party is allowed to ask questions and request documents (data) from each other.

This is a journey called “discovery”. Once it involved going to filing cabinets and boxing up sometimes hundreds of boxes of paper. In our digital world, the discovery process can be a frightening experience for those unprepared and an experience fraught with error for those not sufficiently informed.

Let’s take a look at what is faced in the digital discovery world today.

Many in the United States are convinced that we manage more email than anywhere else and that is simply untrue. We only represent around 14% of the world’s total email volume; with Asia and Europe beating us by two and three times our volume.

Last year the average number of business emails received and sent daily by a single worker averaged 105. If you are involved in a lawsuit with a company in which a single department has   25 workers, you may be dealing with as many as 958,125 email documents generated in a single year. If (3) of the company’s departments have relevant documents and data, you are now   trying to sift through nearly two million emails or an average of 3 million pages (not including attachments).

(more…)

Imagine waking up one morning to the above headline, and wondering whether the world of law and order, at least as you knew it, was coming to an end. Imagine also that the entire rest of the planet, or at least the small portion with which you commerce, just continued to carry on, business as usual. You would likely pinch yourself, hoping to awaken from a dream that was beginning to shade toward nightmare.

That’s precisely what happened to me last week when I opened the newspaper to a Los Angeles Times story concerning a new website, EBookFling, that exists solely for the purpose of enabling electronic book readers to “borrow” books off the site, without providing compensation to either publisher or writer.

“Logically, one could say that publishers can end up losing money,” said Nick Ruffilo, an executive with the company. “It would be hard to argue with that, because it’s not incorrect. But it’s also not the whole picture.” Presumably, that is NOT the whole picture – the whole picture would include the fact that Mr. Ruffilo’s hands would be reaching into the pockets of copyright owners (authors) and licensees (publishers), the lawful recipients of compensation for enabling access to the content under their purview, and transferring that compensation to him. Regardless of the spin Mr. Ruffilo wishes to put on his business methodology, that’s conversion – in both a literal and legal sense.

Whistling in the dark, the company is cited by the Times as claiming their service to be “perfectly legitimate and allowed by the lending policies set by Amazon for the Kindle and Barnes and Noble for the Nook,” (although “calls to [both companies] were not returned”). Ruffino adds, “Legally, this is using a feature that already exists. It fits with the terms of use.”

Whose terms?

One of the oldest premises of the law – some would say the reason for its very existence – is the recognition and protection of private property. The protection of physical property is not an exclusively human trait. Animals mark the boundaries of their territories with urine (we use surveyors), and will defend them with tooth and nail (we use the sheriff, or the militia), but it is the establishment and protection of intellectual property that is unique to our species. Now, I am an intellectual property developer – not a lawyer – but my understanding of the entire coda of copyright, trade mark and patent law has evolved around the concept that the novel product of one’s mind is worth protecting, and the violation of it is no less an offense than the unpermitted trespass to our land, our bodies, our “stuff”. Mr. Ruffino thinks that it should be okay if he “borrows” it for a while, without permission, so that millions of others can “borrow” it from him – for a price. If that’s not illegal – no, downright cheeky – I don’t know what is. Why is it, I wonder, that his company can even entertain the notion that what is mine should be theirs?

The answer is because they can. The same electronic medium in which my publisher insists my work must appear (you’re reading this on line, after all), is prone to getting reproduced – a nice way of saying ripped off – by the very audience to whom I am addressing it. Technology enables the crime, and renders the punishment problematic, but that doesn’t make it right. Just ask the parents of kids who thought it wouldn’t hurt to download a song or two without permission, and found themselves on the wrong end of a six-figure judgment.

There are those who feel that art should exist for a purpose higher than that of material compensation, but the vast majority of those who feel that way about art are incapable of generating it. I admit to having a dog in this fight: I own dozens of patents, trademarks, and copyrights, and I have fed my family with the fruits of my labors only because the law has protected my right to obtain compensation from anyone who wishes to benefit from my work product. There’s the operative word – wishes.  The creator of intellectual property relies on a contract with his public, the willing exchange of pleasure or utility for a fee. The notion that the artist should create a gratuitous endowment out of what was once the exclusive province of his mind is as fundamentally unfair as it is unsound. Am I to work for free?

Check that – I suppose Mr. Ruffilo would hold that I should work for HIM.

Is the phrase, a government “of the people, by the people, for the people” in the constitution? Popular belief is yes, but it is not actually in the constitution. Rather, this phrase comes from President Abraham Lincoln’s Gettysburg address. It is probably a concept that should have been incorporated into the constitution and certainly Lincoln included it to remind citizens that it is their country. I think politicians, and even some of us, forget that it is OUR government and the politicians are OUR employees; they are supposed to be working in OUR best interests.

Business interests are fond of complaining about the jury system and regularly claim that it is “broken”, it needs to be “fixed”. Perhaps the best word is, in fact, “fixed”; they would like to fix the civil justice system so that it can be better influenced in their direction. Should we hold it against them because they work to achieve an unfair playing field? We should not hate Big Corporations for this, but should we allow them to achieve it? Absolutely not!

I think the jury system our founding fathers borrowed from English common law works just fine in protecting the rights of individual citizens. Frankly, I want six of my fellow citizens sitting and listening to evidence in my case. I want six regular people considering what makes sense and what does not make sense. I do not want a special panel appointed to hear my case, as has been promoted by many business “political parrots”. I do not want the government inserting itself into the civil justice system anymore than they already do. I trust an impartial panel of my fellow citizens to fairly weigh the evidence and reach a decision that makes sense.

(more…)